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Jharkhand High Court · body

2010 DIGILAW 966 (JHR)

Dularu Choudhary v. State of Jharkhand

2010-10-06

JAYA ROY

body2010
Order Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. Petitioner has filed this revision application for setting aside the order dated 25.3.2010 passed by the Principal Judge, Family Court, Garhwa in Misc. Case No. 385 of 2009 on the petition filed by the applicant-wife under Section 125 of the Code of Criminal Procedure by which the petitioner-husband has been directed to pay a sum of Rs. 1,250/- per month as maintenance, to the applicant-wife and her son from the date of the order. 3. Before hearing the matter, I tried to reconcile the matter between the parties and for that purpose, I called them in Chamber on 24.9.2010. I had talked personally with the parties but I found that the petitioner is not at all willing to compromise the matter. 4. The brief facts of the case is that the applicant-wife filed a petition under Section 125 of the Code of Criminal Procedure claiming her maintenance. It was stated by her that she was married with the petitioner five years back according to the Hindu rites and customs. After the said marriage, she lived with her husband for four and half years. In the meantime, two children were born out of the said wedlock. After some time of the marriage, it is alleged, the petitioner-husband started assaulting her and ultimately she was driven out from her husband's house. Having no way out, she started living at her father's house. It is alleged that thereafter, the petitioner-husband came to her father and asked for one Coloured T.V., Golden Chain and a Wristwatch. It is also alleged that the petitioner told them that unless the demand is fulfilled he will not take back the applicant. As the father of the applicant-wife is a poor man, he could not fulfill the demand. It is further stated in the petition that the petitioner-husband is working in a private firm and is earning one lac rupees per year. She has further stated that her daughter born from the said wedlock is residing with her husband but the son is residing with her. 5. After receiving notice, the husband-petitioner appeared and filed show-cause admitting the marriage between the parties as well as the birth of the child. She has further stated that her daughter born from the said wedlock is residing with her husband but the son is residing with her. 5. After receiving notice, the husband-petitioner appeared and filed show-cause admitting the marriage between the parties as well as the birth of the child. It was further stated in the show-cause that the parents of the applicant are well to do and that is why the applicant is not willing to reside with the petitioner-husband. It was further stated that on 17.7.2009 the parents and brother of the applicant-wife entered into the house of the petitioner and assaulted him for which the petitioner-husband has filed a criminal case being case no. C-677 of 2009. 6. The applicant-wife examined two witnesses including herself in support of her case. She, as P.W. 1, very specifically stated about the marriage and also about the birth of two children out of the said wedlock. She has further stated that the petitioner-husband is earning Rs. 12,000/- per month. P.W. 2, father of the applicant-wife, has also supported the case of the applicant-wife. 7. The petitioner-husband also examined himself as D.W. 1. He in his evidence, admitted the marriage and also about the two children born out of the said wedlock, one of whom is with him and the another is with the applicant-wife. He has also admitted that the applicant-wife is residing in her Maike since the last nine months but he denied the torture alleged to have been extended to the applicant-wife. He has further stated about the complaint case filed by him against his wife. 8. Regarding income of the petitioner, petitioner has stated that he is a daily wage Mazdoor and usually gets work for only 2 to 5 days and for the remaining days he remains unemployed. He has further stated that he is not medically unfit to do any work. 9. Learned counsel for the husband-petitioner has submitted that the petitioner is a poor man and he has no means of earning except that he is working as daily wage Mazdoor. He has further contended that the court-below without any oral or documentary evidence, only on the basis of presumption, has granted the amount of maintenance of Rs. 1,250/- per month which is very unreasonable and disproportionate to his income. 10. He has further contended that the court-below without any oral or documentary evidence, only on the basis of presumption, has granted the amount of maintenance of Rs. 1,250/- per month which is very unreasonable and disproportionate to his income. 10. It has come in the impugned order that during the pendency of the proceeding before the court-below the present petitioner had stated before the trial court that he wants to take back his wife and as the applicant-wife also agreed, the trial court directed the applicant-wife to go with the husband-petitioner to her matrimonial home but on the same day, the applicant came back to the Court and filed a petition stating therein that after coming out from the Court, the petitioner-husband fled away living her in the way. It clearly shows that the husband petitioner is not at all willing to take back the applicant-wife with him. 11. It is true that the applicant-wife could not produce any chit of paper to show the exact amount of income of her husband before the trial court but it has come in the evidence that the petitioner-husband is not medically unfit to do any work. Since he has admitted the applicant as his wife, in my opinion, the petitioner being the husband is bound to maintain his wife when his wife is unable to maintain herself having no source of income of her own. If a person is healthy and able to do any work, he is bound to maintain his wife and cannot escape his liability on the ground that he is not earning anything and is unemployed. 12. Considering the submissions made by the parties and considering the materials on record, I find that the petitioner who is the husband of the applicant, has admitted the marriage and also the birth of two children from the said wedlock, one of whom is still residing with the applicant-wife. Admittedly, the applicant-wife is living with her one child at her parent's house and the petitioner is not giving any amount for her maintenance. 13. On overall consideration, in my opinion the amount of maintenance granted to the applicant-wife and to her children by the trial court, being only a sum of Rs. 1,250/- from the date of the order, is not at all excessive and unreasonable. 14. 13. On overall consideration, in my opinion the amount of maintenance granted to the applicant-wife and to her children by the trial court, being only a sum of Rs. 1,250/- from the date of the order, is not at all excessive and unreasonable. 14. Accordingly, I do not find any merit in this revision application which is accordingly dismissed.